2004 (5) TMI 93

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....er : Justice K.K. Usha, President]. - This appeal at the instance of the Importer challenging the order passed by the Commissioner (Appeals) rejecting the application for refund has come up for consideration before this Larger Bench pursuant to reference made by the regular bench under Miscellaneous Order No. 128/2003 [2003 (155) E.L.T. 515 (Tri. - Bang.)]. The question to be considered is whether....

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....n passing the order. When the Revenue sought to support the order impugned on the basis of the ratio of the decision of the Supreme Court in Flock India, the appellant sought to draw support from the decision of the Kolkata Bench of the Tribunal in Mecon Ltd. v. CC, Calcutta, 2003 (153) E.L.T. 574 (T) = 2003 (55) RLT 219 wherein it has been held that refund claim of excess duty paid as per assessm....

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....y the party against the above order was dismissed by the Hon'ble Supreme Court in 2003 (157) E.L.T. A265. Similar view taken by the Tribunal in Super Cassettes Industries Ltd. v. CC, Kolkata, 2003 (162) E.L.T. 1148 (T) = 2003 (57) RLT 291 was affirmed by the Hon'ble Supreme Court by dismissing the appeal filed by the party 2004 (163) E.L.T. A116 (S.C.) = 2003 (58) RLT F9. 2. In Kopran Ltd. v. C....

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.... of the Central Excise Act and Section 27 of the Customs Act, 1962 learned Counsel for the appellant submitted that when contentions are raised by the assessee and an adjudication order is issued it will not be open for the assessee to challenge the adjudication order on the Bill of Entry merely by filing an application for refund. The position will be different when there is no Lis between the pa....